Two Parties, Two Platforms on Criminal Justice

The Republicans nod to reforms, then take a sharp right turn.

The 2016 Republican and Democratic party platforms swing hard to the right and left, with Republicans amplifying their traditional positions against gay marriage, abortion, transgender rights, and immigration, and Democrats calling for expanded public healthcare and higher education, and a $15 minimum wage. Platforms are not binding on candidates, but they distill a consensus of the forces within the party at this point in history.

That’s particularly clear this year on the subjects of crime and punishment. In the new Democratic party platform, the fingerprints of the Black Lives Matter movement and Bernie Sanders are apparent, in calls for independent investigations of police-involved shootings, more body cameras, and training in de-escalation. There is a declaration that “states that want to decriminalize marijuana should be able to do so.” There is also a call for the end of the death penalty, something President Obama and Hillary Clinton have not endorsed. Parts of the Democratic draft platform clearly repudiate the tough language their party embraced a generation ago, when their current candidate’s husband was president. The mother of Sandra Bland, who died at a Texas jail last year and became a symbol of the Black Lives Matter movement, is scheduled to speak at their convention next week in Philadelphia.

The Republican document reflects recent tensions in conservative circles. It includes the language of conservatives who call for reducing incarceration — influential Republican patrons like the Koch brothers, politicians like Rick Perry, Rand Paul and Newt Gingrich — but it also includes plenty of traditional invocations of law and order. An ambitious bipartisan sentencing reform effort in Congress, which Sen. Ted Cruz supported and then abandoned, has been whittled down and allowed to languish. And it was opponents of that bill including Senator Tom Cotton of Arkansas and Milwaukee Sheriff David Clarke (who regularly attacks the "myths" of justice reform) who were in the lineup Monday night in Cleveland, where the evening’s theme was “Make America Safe Again.” It was those figures who dominated the party’s televised presentation.

To feel the tension, consider the 2016 passage on mandatory minimum sentences, which says such sentences served a good purpose and should only be rolled back sparingly:

In the past, judicial discretion about sentences led to serious mistakes concerning dangerous criminals. Mandatory minimum sentencing became an important tool for keeping them off the streets. Modifications to it should be targeted toward particular categories, especially nonviolent offenders and persons with drug, alcohol, or mental health issues, and should require disclosure by the courts of any judicial departure from the State’s sentencing requirements.

Conservative criminal justice reformers, who have gathered under the banner of “Right on Crime,” had gotten brief nods to rehabilitation and non-prison sentences for drug crimes into their 2008 and 2012 platforms. An April 2016 resolution they promoted, which was adopted by the Republican National Committee, points out that despite a massive growth in incarceration, many who are released from prison commit new crimes, meaning prisons might not be the best investment in public safety. They added language acknowledging the success of conservative lawmakers in traditionally red states to reduce incarceration and save money. “90% of the prisoners in this country are not federal,” says Ken Cuccinelli, the former attorney general of Virginia, “so it’s meaningful to talk about the experimentation and successes in the states.”

The rift in conservative circles was apparent when the 112 members of the full platform committee edited the document last week in Cleveland. At one point, April Newland, a delegate from the Virgin Islands, proposed adding a line supporting a national registry of child murderers, which had been in the 2012 platform. She described how her brother’s three and five year-old children were murdered by a man who went on to be released from prison, moved near a school, and molested more victims.

The committee also added support for “mens rea” reform, an effort to force prosecutors to prove a defendant intended to commit a crime, as well as strong language supporting drug treatment programs, particularly for first-time offenders. In other areas, the new platform’s language took a different tack, condemning the Supreme Court for limiting use of the death penalty, and Attorney General Loretta Lynch for her “present campaign of harassment against police forces around the country.”

At one of the hearings, delegate Giovanni Cicione, an attorney from Rhode Island, proposed language encouraging lawmakers to “fairly assess the social and economic costs of the failure of drug prohibition, and recognize that our states are sending a clear signal that a new approach is long overdue.”

“We have created with drug prohibition a multi-billion dollar underground economy, and a generation of Al Capones,” Cicione told the other delegates. “And if you want to respond to the Black Lives Matter protesters, if you want to respond to the families of those police officers who died in Dallas, if you want to respond to the families of Alton Sterling and Philando Castile...we can’t answer these questions without explaining how we demean and weaken law enforcement by forcing them to enforce unworkable laws.”

He admits he may have gone overboard in bringing up Black Lives Matter, and his suggestion failed. North Carolina delegate Ron Rabin worried his state “could be regionally surrounded by states where the use of drugs is legal and they come into our state to harass.”

Cicione didn’t expect to win, but he did notice that the the average ages of the yes and no votes were “separated by 40 years,” which to him signalled that reformers will eventually get their way. “Those of us who grew up in a more tolerant environment about drugs are less afraid of them,” he said.

We have organized the statements on criminal justice from the 2012 and 2016 platforms of both parties:

2012

In the last four years, rates of serious crimes, like murder, rape, and robbery, have reached 50-year lows, but there is more work to do.

We will continue to fight inequalities in our criminal justice system.

2012

The most effective forces in reducing crime and other social ills are strong families and caring communities supported by excellent law enforcement. Both reinforce constructive conduct and ethical standards by setting examples and providing safe havens from dangerous and destructive behaviors. But even under the best social circumstances, strong, welltrained law enforcement is necessary to protect us all, and especially the weak and vulnerable, from predators.

Our national experience over the last several decades has shown that citizen vigilance, tough but fair prosecutors, meaningful sentences, protection of victims’ rights, and limits on judicial discretion can preserve public safety by keeping criminals off the streets.

Liberals do not understand this simple axiom: criminals behind bars cannot harm the general public.

Breaking the cycle of crime begins with the children of those who are prisoners. Deprived of a parent through no fault of their own, these youngsters should be a special concern of our schools, social services, and religious institutions.

2016

Democrats are committed to reforming our criminal justice system and ending mass incarceration. Something is profoundly wrong when almost a quarter of the world’s prison population is in the United States, even though our country has less than five percent of the world’s population...Research and evidence, rather than slogans and sound bites, must guide criminal justice policies.

We have been inspired by the movements for criminal justice that directly address the discriminatory treatment of African Americans, Latinos, Asian Americans and Pacific Islanders, and American Indians to rebuild trust in the criminal justice system.

2016

The conduct of the Department of Justice has included refusal to enforce laws, stonewalling congressional committees, destroying evidence, reckless dealing with firearms that led to several deaths on both sides of our border, and defying a citation for contempt. It has urged leniency for rioters while turning a blind eye to mob attacks on peaceful citizens exercising their political rights. A new Administration must ensure the immediate dismissal and, where appropriate, prosecution of any Department officials who have violated their oath of office.

Breaking the cycle of crime begins with the children of those who are prisoners. Deprived of a parent through no fault of their own, youngsters from these families should be a special concern of our schools, social services, and religious institutions.

2012

In the last four years, rates of serious crimes, like murder, rape, and robbery, have reached 50-year lows, but there is more work to do. President Obama and Democrats are fighting for new funding that will help keep cops on the street and support our police, firefighters, and emergency medical technicians. Republicans and Mitt Romney have opposed and even ridiculed these proposals, but we believe we should support our first responders. We support efforts to ensure our courageous police officers and first responders are equipped with the best technology, equipment, and innovative strategies to prevent and fight crimes.

We will end the dangerous cycle of violence, especially youth violence, by continuing to invest in proven community-based law enforcement programs such as the Community Oriented Policing Services program.

2012

No mention.

2016

We will rebuild the bonds of trust between law enforcement and the communities they serve. Across the country, there are police officers inspiring trust and confidence, honorably doing their duty, deploying creative and effective strategies, and demonstrating that it is possible to prevent crime without relying on unnecessary force. They deserve our respect and support, and we should learn from those examples and build on what works.

We will work with police chiefs to invest in training for officers on issues such as de-escalation and the creation of national guidelines for the appropriate use of force. We will encourage better police-community relations, require the use of body cameras, and stop the use of weapons of war that have no place in our communities. We will end racial profiling that targets individuals solely on the basis of race, religion, ethnicity, or national origin, which is un-American and counterproductive. We should report national data on policing strategies and provide greater transparency and accountability. We will require the Department of Justice to investigate all questionable or suspicious police-involved shootings, and we will support states and localities who help make those investigations and prosecutions more transparent, including through reforming the grand jury process...And we will reform the civil asset forfeiture system to protect people and remove perverse incentives for law enforcement to “police for a profit.”

2016

The men and women of law enforcement — whether patrolling our neighborhoods or our borders, fighting organized crime or guarding against domestic terror — deserve our gratitude and our support. Their jobs are never easy, especially in crisis situations, and should not be made more difficult by politicized second-guessing from federal officials. The current administration’s lack of respect for them, from White House intervention in local arrests to the Attorney General’s present campaign of harassment against police forces around the country, has been unprecedented. With all Americans, we mourn those whom we have lost to violence and hatred. To honor their sacrifice, we recommit ourselves, as individuals and as a party, to the rule of law and the pursuit of justice.

The next president must restore the public’s trust in law enforcement and civil order by first adhering to the rule of law himself. Additionally, the next president must not sow seeds of division and distrust between the police and the people they have sworn to serve and protect. The Republican Party, a party of law and order, must make clear in words and action that every human life matters.

Civil asset forfeiture was originally intended as a way to cripple organized crime through the seizure of property used in a criminal enterprise. Regrettably, it has become a tool for unscrupulous law enforcement officials, acting without due process, to profit by destroying the livelihood of innocent individuals, many of whom never recover the lawful assets taken from them. When the rights of the innocent can be so easily violated, no one’s rights are safe. We call on Congress and state legislatures to enact reforms to protect law-abiding citizens against abusive asset forfeiture tactics.

2012

DNA testing should be used in all appropriate circumstances, defendants should have effective assistance of counsel, and the administration of justice should be fair and impartial. That's why we enacted the Fair Sentencing Act, reducing racial disparities in sentencing for drug crimes. That's why President Obama appointed two distinguished jurists to the Supreme Court: Justices Elena Kagan and Sonia Sotomayor. Moving forward, we will continue to nominate and confirm judges who are men and women of unquestionable talent and character and will always demonstrate their faithfulness to our law and our Constitution and bring with them a sense of how American society works and how the American people live.

2012

On mandatory minimums: We support mandatory prison sentencing for gang crimes, violent or sexual offenses against children, repeat drug dealers, rape, robbery and murder. We support a national registry for convicted child murderers. We oppose parole for dangerous or repeat felons.

In solidarity with those who protect us, we call for mandatory prison time for all assaults involving serious injury to law enforcement officers.

On prisons: Public authorities must regain control of their correctional institutions, for we cannot allow prisons to become ethnic or racial battlegrounds. Persons jailed for whatever cause should be protected against cruel or degrading treatment by other inmates. In some cases, the institution of family-friendly policies may curtail prison violence and reduce the rate of recidivism, thus reducing the enormous fiscal and social costs of incarceration.

On diversion of non-violent offenders from prison: We endorse State and local initiatives that are trying new approaches, often called accountability courts. Government at all levels should work with faith-based institutions that have proven track records in diverting young and first time, non-violent offenders from criminal careers, for which we salute them. Their emphasis on restorative justice, to make the victim whole and put the offender on the right path, can give law enforcement the flexibility it needs in dealing with different levels of criminal behavior.

On the federal criminal code: The resources of the federal government’s law enforcement and judicial systems have been strained by two unfortunate expansions: the overcriminalization of behavior and the over-federalization of offenses. The number of criminal offenses in the U.S. Code increased from 3,000 in the early 1980s to over 4,450 by 2008. Federal criminal law should focus on acts by federal employees or acts committed on federal property – and leave the rest to the States. Then Congress should withdraw from federal departments and agencies the power to criminalize behavior, a practice which, according to the Congressional Research Service, has created “tens of thousands” of criminal offenses. No one other than an elected representative should have the authority to define a criminal act and set criminal penalties. In the same way, Congress should reconsider the extent to which it has federalized offenses traditionally handled on the State or local level.

2016

Instead of investing in more jails and incarceration, we need to provide greater investment in jobs and education, and end to the school-to-prison pipeline.

We will reform mandatory minimum sentences and close private prisons and detention centers.

We will assist states in providing a system of public defense that is adequately resourced and which meets American Bar Association standards.

2016

On mandatory minimums: In the past, judicial discretion about sentences led to serious mistakes concerning dangerous criminals. Mandatory minimum sentencing became an important tool for keeping them off the streets. Modifications to it should be targeted toward particular categories, especially nonviolent offenders and persons with drug, alcohol, or mental health issues, and should require disclosure by the courts of any judicial departure from the State’s sentencing requirements.

In solidarity with those who protect us, we call for mandatory prison time for all assaults involving serious injury to law enforcement officers.

On prisons: Public officials must regain control of their correctional institutions, some of which have become ethnic and racial battlegrounds. Persons jailed for whatever cause should be protected against cruel and degrading treatment by other inmates. Courts should not tie the hands of prison officials in dealing with these problems.

On diversion of non-violent offenders from prison: We applaud the Republican governors and legislators who have been implementing criminal justice reforms like those proposed by our 2012 platform. Along with diversion of first-time, nonviolent offenders to community sentencing, accountability courts, drug courts, veterans treatment courts, and guidance by faith-based institutions with proven track records of rehabilitation, our platform emphasized restorative justice to make the victim whole and put the offender on the right path. As variants of these reforms are undertaken in many States, we urge the Congress to learn from what works.

On the federal criminal code: Two grave problems undermine the rule of law on the federal level: over-criminalization and over-federalization. In the first case, Congress and federal agencies have increased the number of criminal offenses in the U.S. code from 3,000 in the early 1980s to more than 4,500 today. That does not include an estimated 300,000 regulations containing criminal penalties. No one, including the Department of Justice, can come up with accurate numbers. That recklessness is bad enough when committed by Congress, but when it comes from the unelected bureaucrats of federal agencies, it is intolerable. The power of career civil servants and political appointees to criminalize behavior is one of the worst violations of constitutional order perpetrated by the administrative state.

To deal with this morass, we urge caution in the creation of new “crimes” and a bipartisan presidential commission to purge the Code and the body of regulations of old “crimes.” We call for mens rea elements in the definition of any new crimes to protect Americans who, in violating a law, act unknowingly or without criminal intent. We urge Congress to codify the Common Law’s Rule of Lenity, which requires courts to interpret unclear statutes in favor of a defendant.

The over-federalization of criminal justice is one of many ways in which the government in Washington has intruded beyond its proper jurisdiction. The essential role of federal law enforcement personnel in protecting federal property and combating interstate crime should into be compromised by diversion to matters properly handled by State and local authorities.

2012

We will reduce recidivism in our neighborhoods. We created the Federal Interagency Reentry Council in 2011, but there's more to be done. We support local prison-to-work programs and other initiatives to reduce recidivism, making citizens safer and saving the taxpayers money. We understand the disproportionate effects of crime, violence, and incarceration on communities of color and are committed to working with those communities to find solutions.

2012

While getting criminals off the street is essential, more attention must be paid to the process of restoring those individuals to the community. Prisons should do more than punish; they should attempt to rehabilitate and institute proven prisoner reentry systems to reduce recidivism and future victimization.

2016

We will remove barriers to help formerly incarcerated individuals successfully re-enter society by “banning the box,” expanding reentry programs, and restoring voting rights. We think the next President should take executive action to ban the box for federal employers and contractors, so applicants have an opportunity to demonstrate their qualifications before being asked about their criminal records.

2016

We encourage States to offer opportunities for literacy and vocational education to prepare prisoners for release to the community.

2012

We must help state, local, territorial, and tribal law enforcement work together to combat and prevent drug crime and drug and alcohol abuse, which are blights on our communities. We have increased funding for the Byrne Justice Assistance Grant Program over the last four years, and we will continue to expand the use of drug courts.

2012

We endorse State and local initiatives that are trying new approaches to curbing drug abuse and diverting first-time offenders to rehabilitation.

2016

The "war on drugs" has led to the imprisonment of millions of Americans, disproportionately people of color, without reducing drug use. Whenever possible, Democrats will prioritize prevention and treatment over incarceration when tackling addiction and substance use disorder. We will build on effective models of drug courts, veterans’ courts, and other diversionary programs that seek to give nonviolent offenders opportunities for rehabilitation as opposed to incarceration.

We must confront the epidemic of drug and alcohol addiction, specifically the opioid crisis, by vastly expanding access to treatment, supporting recovery, helping community organizations, and promoting better practices by prescribers.

2016

The progress made over the last three decades against drug abuse is eroding, whether for cultural reasons or for the lack of national leadership. In many jurisdictions, marijuana is virtually legalized despite its illegality under federal law. At the other end of the drug spectrum, heroin use nearly doubled from 2003 to 2013, while deaths from heroin have quadrupled. All this highlights the continuing conflicts and contradictions in public attitudes and public policy toward illegal substances. Congress and a new Administration should consider the long-range implications of these trends for public health and safety and prepare to deal with the problematic consequences.

The misuse of prescription painkillers — opioids — is a related problem. Heroin and opioid abuse touches our communities, our homes and our families in ways that have grave effects on Americans in every community. With a quadrupling of both their sales and their overdose deaths, the opioid crisis is ravaging communities all over the country, often hitting rural areas harder than urban. Because over-prescription of drugs is such a large part of the problem, Republican legislation now allows Medicare Part D and Medicare Advantage plans to limit patients to a single pharmacy. Congressional Republicans have also called upon the Centers for Medicare and Medicaid Services to ensure that no physician will be penalized for limiting opioid prescriptions. We look for expeditious agreement between the House and Senate on the Comprehensive Addiction and Recovery Act, which addresses the opioid epidemic from both the demand and supply sides of the problem.

2012

No mention.

2012

No mention.

2016

Because of conflicting federal and state laws concerning marijuana, we encourage the federal government to remove marijuana from the list of “Schedule 1" federal controlled substances and to appropriately regulate it, providing a reasoned pathway for future legalization. We believe that the states should be laboratories of democracy on the issue of marijuana, and those states that want to decriminalize it or provide access to medical marijuana should be able to do so. We support policies that will allow more research on marijuana, as well as reforming our laws to allow legal marijuana businesses to exist without uncertainty. And we recognize our current marijuana laws have had an unacceptable disparate impact in terms of arrest rates for African Americans that far outstrip arrest rates for whites, despite similar usage rates.

2016

In many jurisdictions, marijuana is virtually legalized despite its illegality under federal law.

2012

We believe that the death penalty must not be arbitrary.

2012

Courts should have the option of imposing the death penalty in capital murder cases.

2016

We will abolish the death penalty, which has proven to be a cruel and unusual form of punishment. It has no place in the United States of America. The application of the death penalty is arbitrary and unjust. The cost to taxpayers far exceeds those of life imprisonment. It does not deter crime. And, exonerations show a dangerous lack of reliability for what is an irreversible punishment.

2016

The constitutionality of the death penalty is firmly settled by its explicit mention in the Fifth Amendment. With the murder rate soaring in our great cities, we condemn the Supreme Court’s erosion of the right of the people to enact capital punishment in their states.

2012

On sexual assault: We are committed to ending violence against women. We support reauthorizing the bipartisan Violence Against Women Act and oppose the proposals by Republicans in the House of Representatives that would undermine this law and deprive law enforcement of the tools it needs to combat violence against women.

On human trafficking: Some 27 million women, men, and children around the world are victims of human trafficking. The President and the Democratic Party believe that trafficking in persons is both an affront to our fundamental values and, as a source of funds for transnational criminals and terrorist organization, a threat to national and international security. The Obama administration has used bilateral and multilateral diplomacy, targeted foreign assistance, training programs, public outreach, and law enforcement to combat trafficking in persons across the globe. The administration has continued to provide annual assessments of the strengths and weaknesses of foreign governments' efforts to address the issue, encouraging all countries to do more and calling out countries that have failed to do enough. And the administration has provided technical assistance to improve law enforcement and grants to support grassroots prevention efforts around the world targeting sex and labor trafficking, child sex tourism, forced child labor, and other abuses. The administration is also committed to taking action at home to fight trafficking, including the sex trafficking of young girls.

2012

On internet predators:
The Internet must be made safe for children. We call on service providers to exercise due care to ensure that the Internet cannot become a safe haven for predators while respecting First Amendment rights. We congratulate the social networking sites that bar known sex offenders from participation. We urge active prosecution against child pornography, which is closely linked to the horrors of human trafficking. Current laws on all forms of pornography and obscenity need to be vigorously enforced.

2016

On sexual assault: Democrats are committed to ending the scourge of violence against women wherever it occurs —whether in our homes, streets, schools, military, or elsewhere. We will continue to support the Violence Against Women Act to provide law enforcement with the tools it needs to combat this problem. We will support comprehensive services for survivors of violence and increase prevention efforts in our communities and on our campuses. Democrats will fight to bring an end to sexual assault—wherever it occurs, including on campuses— because everyone deserves a safe environment where they can learn and thrive, not live in fear. We will provide comprehensive support to survivors, and ensure a fair process for all on-campus disciplinary proceedings and in the criminal justice system. We will increase sexual violence prevention education programs that cover issues like consent and bystander intervention, not only in college, but also in secondary school.

On human trafficking:We will stop the scourge of human trafficking and modern slavery of men, women, boys, and girls. We will use the full force of the law against those who engage in modern-day forms of slavery, including the commercial sexual exploitation and forced labor of men, women, and children. Building on the accomplishments of the Victims of Trafficking and Violence Protection Act of 2000, we call for increased diplomatic efforts with foreign governments to root out complicit public officials who facilitate or perpetrate this evil. We will also work to increase the provision of services and protections for trafficking survivors.

2016

On internet predators:
The internet must not become a safe haven for predators. Pornography, with its harmful effects, especially on children, has become a public health crisis that is destroying the lives of millions. We encourage states to continue to fight this public menace and pledge our commitment to children’s safety and well-being. We applaud the social networking sites that bar sex offenders from participation. We urge energetic prosecution of child pornography, which is closely linked to human trafficking.

On sexual assault: Sexual assault is a terrible crime. We commend the good-faith efforts by law enforcement, educational institutions, and their partners to address that crime responsibly. Whenever reported, it must be promptly investigated by civil authorities and prosecuted in a courtroom, not a faculty lounge. Questions of guilt or innocence must be decided by a judge and jury, with guilt determined beyond a reasonable doubt. Those convicted of sexual assault should be punished to the full extent of the law. The Administration’s distortion of Title IX to micromanage the way colleges and universities deal with allegations of abuse contravenes our country’s legal traditions and must be halted before it further muddles this complex issue and prevents the proper authorities from investigating and prosecuting sexual assault effectively with due process.

2012

We support the rights of victims to be respected, heard, and compensated.

2012

Thirty years ago, President Reagan’s Task Force on Victims of Crime, calling the neglect of crime victims a “national disgrace,” proposed a Constitutional amendment to secure their formal rights. While some progress has been made to rectify that situation, the need for national action still persists in the unacceptable treatment of innocent victims. We call on the States to make it a bipartisan priority to protect the rights of crime victims, who should also be assured of access to social and legal services; and we call on the Congress to make the federal courts a model in this regard for the rest of the country.

Criminals injured in the course of their crimes should not be able to seek monetary damages from their intended victims or from the public.

2016

No mention.

2016

We call on Congress to make the federal courts a model for the rest of the country in protecting the rights of victims and their families. They should be told all relevant information about their case, allowed to be present for its trial, assured a voice in sentencing and parole hearings, given access to social and legal services, and benefit from the Crime Victims Fund established under President Reagan for that sole purpose.